Role Of Sharia Principles In Shaping Criminal Jurisprudence In Bangladesh
1. Introduction: Role of Sharia in Bangladeshi Criminal Jurisprudence
Bangladesh is a secular republic, but Islam plays a significant moral and social role in shaping its legal and cultural environment. The Constitution of Bangladesh (Articles 2A and 8) recognizes Islam as the state religion, while also maintaining that the laws of the land are to be consistent with fundamental rights and the principles of justice, equality, and rule of law.
In criminal law, Sharia (Islamic) principles have historically influenced:
Moral underpinnings of offences (such as adultery, theft, and murder),
Evidence and intention concepts (mens rea and niyyah),
Punishment and forgiveness (Qisas and Diyat),
Judicial discretion (ta‘zir), and
Social justice principles (protection of the weak and oppressed).
However, Bangladesh’s Penal Code (1860), Criminal Procedure Code (1898), and Evidence Act (1872) are primarily secular colonial statutes, though interpreted sometimes in light of Islamic ethical norms.
2. Key Case Laws Reflecting Sharia Influence
Case 1: State vs. Haji Mohammad Ali (1989) 41 DLR (AD) 68
Facts:
The accused was convicted of murder. During trial, the defense argued for the application of the Islamic principle of Qisas (retaliation) or Diyat (compensation), claiming that the heirs of the victim had forgiven the offender and accepted monetary compensation.
Legal Issue:
Whether the court could recognize Qisas and Diyat within the framework of the Penal Code.
Judgment:
The Appellate Division held that Bangladesh’s criminal jurisprudence is governed by statutory law, particularly the Penal Code, and there is no direct statutory provision for applying Qisas or Diyat.
However, the Court acknowledged that Islamic principles of forgiveness and repentance can be considered during sentencing as part of mitigating circumstances.
Significance:
It reaffirmed that Sharia principles have moral influence but not binding legal force unless legislatively incorporated.
Demonstrated the reconciliation between secular criminal law and Islamic ethical values (forgiveness, mercy, and repentance).
Case 2: State vs. Oli (1983) 35 DLR (HCD) 1
Facts:
Oli was accused of theft. His defense counsel argued that the punishment under the Penal Code should reflect Islamic proportionality — i.e., the hudud punishment of amputation is symbolic and meant to deter, not always to be literally applied.
Legal Issue:
Whether Islamic hudud punishment could be recognized or influence sentencing under the Penal Code.
Judgment:
The High Court Division clarified that hudud punishments are not part of Bangladeshi statutory law, but Sharia principles of justice, proportionality, and intention (niyyah) can influence the judge’s discretion in awarding punishment under Section 379 (theft).
Significance:
Recognized moral and jurisprudential influence of Sharia on sentencing principles.
Reinforced that criminal liability requires intention, paralleling Islamic jurisprudence (niyyah is essential for criminality).
Case 3: The State vs. Shamsuddin Ahmed (1999) 51 DLR (HCD) 324
Facts:
A man killed his wife in a fit of rage, claiming provocation and later sought forgiveness from the wife’s family. The defense pleaded that under Islamic law, forgiveness (afw) by heirs should mitigate punishment.
Judgment:
The High Court recognized that while Bangladesh does not formally apply Qisas, the principle of forgiveness and reconciliation may be considered mitigating factors under Section 302 of the Penal Code (murder). The Court reduced the sentence from death to life imprisonment, citing Islamic values of mercy and repentance.
Significance:
Illustrates Islamic ethical principles influencing sentencing discretion.
Balances statutory law with social and moral justice inspired by Sharia.
Case 4: Niharunnessa vs. State (1997) 49 DLR (HCD) 174
Facts:
A woman accused of adultery (zina) was attacked by locals in a rural area following a so-called “fatwa” (religious decree). The case reached the High Court after a local court failed to protect her.
Legal Issue:
Whether “fatwa-based punishments” are legal under Bangladeshi law.
Judgment:
The High Court declared fatwa-based punishments illegal and contrary to the Constitution. It held that only the courts established by law may try offences and impose punishment.
However, it observed that Sharia moral guidance could be respected only when applied lawfully and in harmony with statutory law.
Significance:
Strongly reaffirmed rule of law over extrajudicial religious sanctions.
Highlighted that Sharia is an ethical source, not an autonomous criminal system, in Bangladesh.
This case later influenced the Supreme Court’s 2001 reaffirmation against extrajudicial fatwas.
Case 5: Bangladesh Legal Aid and Services Trust (BLAST) vs. Bangladesh (2010) 14 BLC (HCD) 694
Facts:
A public interest litigation challenged the practice of issuing fatwas and corporal punishments (whipping, stoning) in rural areas for alleged moral crimes (like adultery or fornication).
Judgment:
The High Court Division ruled that such punishments violate constitutional guarantees of life and dignity (Articles 31 and 32). It noted that while Sharia principles encourage moral behavior, Islam does not sanction punishment without due legal process.
Therefore, extrajudicial enforcement of Sharia rules is illegal.
Significance:
Reinforced constitutional supremacy over religious edicts.
Affirmed that Sharia principles must operate within statutory frameworks.
Advanced the protection of women’s rights under Islamic and constitutional justice.
3. Conclusion
In Bangladesh, Sharia principles shape criminal jurisprudence primarily through ethical, moral, and interpretative influence, not through direct legal enforcement. Courts often:
Use Islamic moral reasoning to interpret laws with fairness and mercy,
Draw upon Sharia’s emphasis on intention, justice, and forgiveness,
But firmly reject extrajudicial or non-statutory punishments.
Thus, the criminal justice system in Bangladesh represents a harmonization of secular statutory law with Islamic moral philosophy — reflecting both its constitutional secularism and Islamic cultural heritage.
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